State v. DeLaO
| Decision Date | 23 May 2022 |
| Docket Number | A-1-CA-38923 |
| Citation | 521 P.3d 444 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Juana Amador DELAO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee
Bennett J. Baur, Chief Public Defender, MJ Edge, Assistant Appellate Defender, Santa Fe, NM, for Appellant
{1} Defendant Juana Amador DeLaO appeals her convictions for four counts of fraud, contrary to NMSA 1978, Section 30-16-6(E) (2006), and thirteen counts of failing to disclose facts to obtain public assistance, contrary to NMSA 1978, Section 30-40-1(D), (E) (2006).1 The charges related to Defendant's application for and receipt of several forms of public assistance benefits: Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), Medicaid, and food stamps (SNAP). Defendant invites us to reverse her convictions based on her contentions that the charges under Section 30-16-6 and Section 30-40-1 are either entirely preempted by federal law or they are duplicative. Alternatively, Defendant seeks remand for "a new and fair trial before a properly instructed jury." We conclude that under these circumstances, convictions pursuant to both Section 30-16-6 (fraud) and Section 30-40-1 () impose multiple unsanctioned punishments. We therefore affirm in part, reverse in part, and remand for the district court to vacate Defendant's convictions under Section 30-40-1. Otherwise, we affirm.
{2} At the outset, we provide general background for SSI, SSDI, Medicaid, and SNAP benefits. SSI "is a federal income maintenance program for the aged, blind, or disabled" and eligibility is based on "need and a showing that the applicant's earning capacity is impaired by either age, blindness or other disability." Sheets v. Sheets , 1987-NMCA-128, ¶ 15, 106 N.M. 451, 744 P.2d 924. To qualify, the applicant must show income "below the statutory maximum" and awarded benefits "are subject to periodic review." Id. SSDI, however, is "an earned insurance proceed" that is "directly related to the amount the insured has paid into the program." In re Marriage of Taber , 47 Kan.App.2d 841, 280 P.3d 234, 238 (2012). A person who has "previously worked and contributed to the program by paying taxes on earned income" is entitled to benefits if she subsequently "suffer[s] from a physical or mental disability
and [is] no longer able to work." Id. Medicaid is a "federal-state program providing medical services to the needy." Starko, Inc. v. Gallegos , 2006-NMCA-085, ¶ 2, 140 N.M. 136, 140 P.3d 1085. New Mexico has adopted a "managed care system to provide cost-efficient, preventive, primary and acute care for medicaid recipients." NMSA 1978, § 27-2-12.6(A) (1994). The state contracts with other entities, "which in turn provide health care to Medicaid recipients." Starko , 2006-NMCA-085, ¶ 3, 140 N.M. 136, 140 P.3d 1085. Last, SNAP is "a federal-state program," 8.139.100.9(A) NMAC, that is "designed to promote the general welfare and to safeguard the health and well-being of the nation's population by raising the levels of nutrition among low-income households." 8.139.100.11(A) NMAC. With this as background, we turn to the facts of the present case.
{3} The evidence at trial established that in 2012, Defendant submitted an application for and received SSI and SSDI benefits. Defendant reported either only social security income or did not disclose a current employer. As a result of her SSI application, Defendant additionally was determined to be eligible for Medicaid and received Medicaid benefits. In late 2013, Defendant also applied for SNAP benefits but reported no income or employment on those applications. Defendant, however, had income and was working for Dollar Cab between 2009 and 2012, and again between 2013 and 2017.
{4} Defendant received SSDI, SSI, and Medicaid benefits between 2012 and 2017, and SNAP benefits between 2013 and 2017. Defendant, as a recipient of benefits from each of these programs, was obligated to report any income or employment changes to administering agencies. Despite reapplications and notice of her ongoing reporting obligations, Defendant did not report her Dollar Cab income or employment during the period that she received benefits from each of the programs. In 2018, Defendant was charged with multiple counts of fraud and failure to disclose facts to obtain public assistance. The jury convicted Defendant on all counts. Defendant appeals.
{5} On appeal, Defendant argues that (1) the multiple convictions violate double jeopardy, and (2) the district court improperly refused to instruct the jury on mistake of fact.2 We address each of these arguments in turn.
{6} Defendant contends that the jury's seventeen convictions violate constitutional double jeopardy protections. We review double jeopardy claims de novo. State v. Bernal , 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289. In the context of the present case, double jeopardy protections prevent citizens from being subject to multiple punishments. See id. ¶ 7. "Multiple punishment problems can arise from both ‘double-description’ claims, in which a single act results in multiple charges under different criminal statutes, and ‘unit-of-prosecution’ claims, in which an individual is convicted of multiple violations of the same criminal statute." Id. Defendant raises both double description and unit of prosecution claims, but we begin with a brief overview of the charges.
{7} The jury considered four counts of fraud and thirteen counts of public assistance fraud (PA fraud). The following charts summarize the evidence at trial in relation to the instructions for the charges:
The Medicaid Counts
Count/ Charge
Date Range/Amount charged
Amount Obtained
1: Fraud
1/1/13–12/31/17 > $2,500
$16,517.83
2: PA fraud
7/1/12–6/30/13 > $2,500
$2,527.22
3: PA fraud
7/1/13–6/30/14 > $2,500
$5,289.34
4: PA fraud
7/1/14–6/30/15 > $2,500
$2,801.34
5: PA fraud
7/1/15–6/30/16 > $2,500
$3,169.66
6: PA fraud
7/1/16–6/30/17 > $2,500
$2,770.27
The SSI Counts
Count/Charge
Date Range/Amount charged
Amount Obtained
7: Fraud
6/1/12–6/30/17 > $2,500
$13,355.92
8: PA fraud
7/1/13–6/30/14 > $2,500
$2,508.00
9: PA fraud
7/1/14-6/30/15 > $2,500
$3,180.00
10: PA fraud
7/1/15–6/30/16 > $2,500
$3,204.00
11: PA fraud
7/1/16–6/30/17 > $2,500
$2,942.00
The SSDI Count
Count/Charge
Date Range/Amount Charged
Amount Obtained
12: Fraud
7/1/12–6/30/17 > $2,500
$11,185.00
The SNAP Counts
Count/Charge
Date Range/Amount Charged
Amount Obtained
13: Fraud
11/1/13–10/31/17 > $2,500
$8,168.00
14: PA fraud
11/1/13–10/31/14 > $2,500
$1,878.00
15: PA fraud
11/1/14–10/31/15 > $2,500
$1,631.00
16: PA fraud
11/1/15–10/31/16 > $2,500
$2,328.00
17: PA fraud
11/1/16–10/31/17 > $2,500
$2,328.00
{8} With this as background, we consider whether Defendant was subjected to multiple punishments in violation of her double jeopardy rights, first if the fraud and PA fraud convictions resulted from wrongful double description and second whether the seventeen separate counts—multiple convictions under the same statute—are unacceptable units of prosecution.
{9} To analyze a double description claim, we first consider "whether the conduct underlying the offenses was unitary, i.e., whether the same conduct violates both statutes," and if the conduct is unitary, we proceed "to analyze whether the [L]egislature intended to create separately punishable offenses." State v. Gutierrez , 2011-NMSC-024, ¶ 51, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citation omitted). "Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial." Swafford v. State , 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. Defendant argues that the PA fraud convictions must be vacated, because the same conduct supported those convictions that supported the fraud convictions, and the Legislature "did not intend to punish both general fraud against the government and [PA] fraud for unitary conduct." The State responds that the jury was clearly instructed on seventeen counts for "separate and distinct conduct," because the fraud instruction related to misrepresentation of a fact to different agencies during four-year periods and the PA fraud instruction required a failure to disclose a material fact to different agencies in single-year periods. We agree with Defendant and begin our analysis with whether the conduct in question was unitary.
{10} To determine whether conduct is unitary, we look to whether a defendant's acts are sufficiently distinct and "separated by time or space, looking to the quality and nature of the acts, the objects and results involved, and the defendant's mens rea and goals during each act." State v. Saiz , 2008-NMSC-048, ¶ 30, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State v. Belanger , 2009-NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d 783. We also consider "the elements of the charged offenses, the facts presented at trial, and the instructions given to the jury," State v. Sena , 2020-NMSC-011, ¶ 46, 470 P.3d 227, and attempt to discern "an identifiable point at which one of the charged crimes ha[s] been completed and the other not yet committed." State v. DeGraff , 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61. For the reasons that follow, we conclude that Defendant's conduct supporting the fraud charges and the PA fraud charges was unitary, because (1) the fraud was not complete before the PA fraud was committed and the time and space for each overlapped, (2) the quality and nature of the acts was the same, (3) the object and results of the acts were the same, and (4) the mens rea for the fraud and the PA fraud were the same. See Saiz , 2008-NMSC-048, ¶ 30, 144 N.M. 663, ...
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